Susan Estrich: The judge and the NSA

December 18, 2013 9:57:12 AM

Susan Estrich -

I suspect the NSA may have thought they got lucky when one of the first post-Edward Snowden cases to challenge their phone metadata collection was assigned to Judge Richard Leon on the federal district court in Washington, D.C. After all, Leon was appointed by President George W. Bush after a long career, much of it spent working for Republicans in Washington. In addition to his stints as a prosecutor during the Republican years, he also served as counsel for the Republicans' investigation of the Iran-Contra affair, defending the Reagan administration against charges that its official violated the rules set by Congress and lied about the operation.

Perfect choice for an embattled administration seeking to defend a secret spy program? You might think.

But you would be wrong, which is why an independent judiciary is so important.

Privacy cases often make for strange bedfellows, and the plaintiff here was not the ACLU (although they have been filing similar suits), but a conservative activist who claimed that the NSA was "messing" with him by sending text messages to his client. The judge overlooked that "unusual" claim, settling instead for a less "unusual" but potentially more far-reaching base for allowing two individuals to sue: Because the government itself was describing the program as a "comprehensive metadata database," it must have collected their data along with everyone else's. Under that theory, which no one would call conservative, every American would have standing to sue.

As for the merits, Leon was even tougher. In a lengthy (68 pages for a district court opinion counts as extremely lengthy) opinion, Leon wrote, "I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. ... Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment."

The program repeatedly has been upheld (in secret) by judges handpicked to serve on the Foreign Intelligence Surveillance Court. Leon was the first judge not on that court to examine the data collection program at the urging of civil liberties plaintiffs as opposed to criminal defendants.

So you have an independent judge appointed by a Republican president reviewing a program that most Republicans, along with a Democratic president, have praised, and what happens?

He makes an independent decision.

Those Founding Fathers of ours were clever guys. Even with all the mucking about by organized interests on both sides, the politicization of judicial nominations and confirmations by both sides, along comes a Republican judge, and he consults the Constitution and case law and (my guess) his conscience and principles -- and lo and behold, one man makes a decision that could put the program on hold.

Not yet, of course. The judge was careful to stay his opinion to allow for appeal to the U.S. Court of Appeals for the D.C. Circuit -- the one Obama was trying to "pack" with people who shared at least some of his views, while Republicans were refusing to vote to confirm even highly qualified appointees lest Obama take "control" of the court.

So that's where this case will go on appeal -- and I defy all of the talking heads on television to predict how that court will rule. Yes, it will have more Democratic appointees than Republican appointees by the time it hears this case. But does that mean the NSA will win? Not necessarily.

Independent judges with the courage of their convictions -- and the D.C. Circuit is full of them, led by Chief Judge Merrick Garland -- are not mere proxies for the presidents who appoint them, even if the Senate debate might suggest otherwise. The good ones, like Leon, don't work for the politician who appointed them or the former colleagues who helped them get confirmed. They work for us.